Date: 20080506
Docket: IMM-3224-07
Citation: 2008 FC 577
Ottawa, Ontario, May 6, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
KYUNG
HEE CHOI
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by visa officer Moonho Lee
at the Canadian Embassy in Seoul, Korea dated July 12, 2007, refusing the
applicant’s application for permanent residence in Canada. The visa
officer’s basis for refusing the application was that the applicant failed to
accumulate sufficient points as a skilled worker and will not likely become
economically established in Canada.
FACTS
[2]
The
applicant, Kyung Hee Choi, is a 38-year-old citizen of Korea. In February
2005, she filed an application for permanent residence under the economic
class, skilled worker category. She wished to be assessed in the occupation of
“Secondary School Teacher.”
[3]
On
March 19, 2007, the applicant received an offer of employment as a music
teacher at Cambridge International College of Canada in Toronto (the school).
The offer required both oral and written proficiency in English and was open
for a two-year period from the date of issue.
[4]
On
May 14, 2007, the applicant submitted documentation of her employment offer, as
well as the results of her language proficiency exams. The language results
established that the applicant had “no proficiency” in English with respect to
speaking, listening and writing, and that she possessed only “basic” English
proficiency with respect to reading.
[5]
In
response to the results, the visa officer issued a letter of concern, dated
June 8, 2007, which stated in part:
On May 22, 2007, you requested points for
arranged employment in Canada based on the positive opinion
of Service Canada on a job offer for you as music teacher. However, it appears that
you do not qualify for this job offer because you do not meet its language
requirement: The arranged employment opinion #7225456 specifies that both oral
and written English as requirement. However, your IELTS score indicates that
you have no proficiency in speaking, listening, and writing, and only basic
proficiency in reading of English. Therefore, you do not warrant any points for
arranged employment in Canada.
The applicant was given 30 days to respond
to the visa officer’s concerns.
[6]
In
a letter dated June 18, 2007, the applicant responded to the letter, stating
that while the visa officer’s concerns were “understandable,” she nevertheless
believed that she was “capable of teaching within an English speaking
community.” In a letter dated June 19, 2007, the principal at the school, Irwin
Diamond, also addressed the visa officer’s letter by explaining why he extended
the offer of employment to the applicant despite her demonstrated lack of
proficiency in English. In the letter, Mr. Diamond stated that the applicant
possessed “all the fundamental skills necessary to make [her] an excellent
addition to Cambridge’s diverse community,” and stated a belief that the
applicant’s English would be “sufficiently improved” by the time she began
teaching. Both letters were received by the Canadian Embassy on June 28, 2007.
The letter from the school principal stated, in part:
… allow me to explain why I decided to
offer her this placement regardless of the … lack of concrete experience
teaching in English …
The
principal cites the reasons why the applicant is, in his opinion, an excellent
music teacher:
… Her attitude is one of a person that is
not afraid of the challenge and hard work; already she is making the effort to
further develop and polish her English skills, taking private lessons and
taking conversation classes. Overall, she left our meeting having made a strong
impression, convincing me of her ability in teaching the subject and desire to
learn the language and customs of Canadian society; in this case, both parties
of students and teacher, will benefit from the experience … therefore I am
certain her English will be sufficiently improved by the time she begins instruction
at our school. …
[7]
On
July 3, 2007, the visa officer considered the submissions from both the
applicant and Mr. Diamond. In the Computer Assisted Immigration Processing
System notes (the CAIPS notes), the visa officer recorded the following
observations:
Above letters reviewed. Both PI and
employer state PI “will” have her English sufficiently improved by the time she
begins teaching at the school. -> As of today, PI does not meet the language
requirements specified in the LMO thus does not warrant ARE pts.
PI obtains 61 total pts. Am satisfied pts
awarded is a good indicator of PI’s likelihood to become economically
established in Cda. S [substituted] of E [evaluation] per R76(3) not warranted.
Refused.
[Emphasis added.]
[8]
Accordingly,
by letter dated July 12, 2007, the applicant was notified that her application
for permanent residence had been refused. The letter stated, in part:
You have obtained insufficient points to
qualify for immigration to Canada, the minimum requirement
being 67 points. I awarded no points for arranged employment in Canada because, as of today, you do
not meet the language requirements specified in the arranged employment opinion
for your Canadian job offer. You have not obtained sufficient points to satisfy
me that you will be able to become economically established in Canada.
ISSUE
[9]
The
sole issue raised in this application is whether the visa officer erred in
concluding that the points awarded were a sufficient indicator of the
applicant’s ability to become economically established in Canada.
STANDARD OF
REVIEW
[10]
In
Kniazeva v. Canada (Minister of
Citizenship and Immigration), 2006 FC 268, 288 F.T.R. 282, Mr. Justice de
Montigny addressed the appropriate standard of review to apply to a visa
officer’s decision under the skilled worker category, stating at paragraph 15:
¶ 15 … This Court has consistently held that
the particular expertise of visa officers dictates a deferential approach when
reviewing their decisions. There is no doubt in my mind that the assessment of
an Applicant for permanent residence under the Federal Skilled Worker Class is
an exercise of discretion that should be given a high degree of deference. To
the extent that this assessment has been done in good faith, in accordance with
the principles of natural justice applicable, and without relying on irrelevant
or extraneous considerations, the decision of the visa officer should be
reviewed on the standard of patent unreasonableness….
[11]
However,
in light of the recent Supreme Court of Canada decision in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9 (QL), it is clear that the standard of patent
unreasonableness has now been eliminated, and that courts conducting a standard
of review analysis must now focus on two standards, those of correctness and reasonableness.
[12]
Accordingly,
the “high degree of deference” referred to by Mr. Justice de Montigny in Kniazeva
supports a reasonableness standard of review and implies, as the Supreme Court
held at paragraph 49 of Dunsmuir, that courts will give “due consideration
to the determinations of decision makers” when reaching a conclusion.
RELEVANT LEGISLATION
[13]
Subsection
12(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
states that a foreign national may be selected for permanent residence under
the economic class on the basis of their ability to become economically
established in Canada:
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12. (2) A foreign national may be selected as
a member of the economic class on the basis of their ability to become
economically established in Canada.
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12.
(2)
La sélection des étrangers de la catégorie « immigration
économique » se fait en fonction de leur capacité à réussir leur
établissement économique au Canada.
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[14]
Also
relevant to this matter is section 76 of the Immigration and Refugee
Protection Regulations, S.O.R./2002-227, as amended (the Regulations),
which provides for the criteria against which an economic class application is
assessed, and includes the discretion of the visa officer. The section has been
attached to the end of this decision as Appendix “A.”
ANALYSIS
Issue: Did the visa
officer err
in concluding that the points awarded were a sufficient indicator of the
applicant’s ability to become economically established in Canada?
[15]
Under
subsection 76(3) of the Regulations, a visa officer may substitute the points
assessment with his or her own evaluation of an applicant’s likelihood of becoming
economically established in Canada. Such a power is discretionary under the
Regulations and may be performed “if the number of points awarded is not a
sufficient indicator of whether the skilled worker may become economically
established in Canada.”
[16]
In
Nayyar v. Canada (Minister of Citizenship and Immigration), 2007 FC
199, 62 Imm. L.R. (3d) 78, Mr. Justice Gibson held that it was a breach of
procedural fairness for a visa officer to fail to consider the use of
discretion under subsection 76(3) when requested to do so. However, in the case
at bar, the applicant does not allege that the visa officer erred in failing to
consider the use of discretion. Rather, the applicant argues that the visa
officer was unreasonable in refusing to exercise positive discretion given the
evidence before him.
[17]
In
arguing that it was unreasonable for the visa officer to refuse to exercise
positive discretion under subsection 76(3), the applicant relies on two facts
contained within her application for permanent residence: 1) that she possessed
an offer of employment validated by Service Canada; and 2) that she had settlement
funds totalling approximately CDN $699,000. According to the applicant, these
facts demonstrate the unreasonableness of the visa officer’s refusal, since it
would be “impossible for a reasonable person to conclude that a person arriving
in Canada with $699,000
and an offer of employment will not be able to become ‘economically established
in Canada’.”
[18]
With
respect to the applicant’s offer of employment, while the offer was validated
by Service Canada in an “Arranged Employment Opinion Confirmation” dated April
19, 2007, the visa officer was clear in stating that no points were awarded for
arranged employment because the applicant did not meet the language
requirements of the position. However, the visa officer did not give any weight
to the principal’s letter dated June 19, 2007, which assured the visa officer
that the applicant would be able to fulfill the requirements of the job and
that her English ability would soon rise to the requirements of the job. In the
Court’s view, it was unreasonable for the visa officer not to give this letter
some weight as a sufficient indicator of the applicant’s ability to perform
this job to the satisfaction of the principal of the school. This was a factor that
the visa officer did not consider in deciding whether to substitute his
evaluation for the likelihood of the applicant becoming economically
established in Canada. In fact, this is a letter from the school’s
principal stating that, having met personally with the applicant, he was
confident that her English would be satisfactory by the time she began
teaching. Further, the letter stated that the school very much wants to hire
the applicant as a music teacher.
[19]
In
relation to the settlement funds possessed by the applicant, this Court has
concluded that a visa officer can consider settlement funds when deciding whether
to exercise positive discretion under subsection 76(3): see Hernandez v.
Canada (Minister of Citizenship and Immigration), 2004 FC 1398, 43 Imm.
L.R. (3d) 63. In Hernandez, Madam Justice Heneghan concluded that it was
an error for the visa officer to fail to consider the applicant’s settlement
funds when refusing to exercise discretion under the Regulations.
[20]
Subsection
76(3) of the Regulations has been amended since Hernandez. Before the
amendment, subsection 76(3) read, in part:
… an officer may substitute for the
criteria set out in paragraph (1) their evaluation of the likelihood of the
ability of the skilled worker to become economically established in Canada …
Since
Hernandez, subsection 76(3) now reads:
… an officer may substitute for the criteria
set out in paragraph (1)(a) their evaluation of the likelihood of the ability
of the skilled worker to become economically established in Canada …
In my opinion, the amendment of “paragraph
(1)” to “paragraph (1)(a)” does not restrict the criteria that the visa officer
can consider in his or her substituted evaluation of the likelihood of the
ability of the skilled worker to become economically established in Canada. Such a
restrictive reading does not make sense. The clear intent of subsection 76(3)
is to allow the visa officer to substitute their evaluation taking into account
a number of factors, and not just the factors listed in paragraph 76(1)(a) as
contended by the respondent.
[21]
I
agree with Madam Justice Heneghan’s conclusion that any consideration under
subsection 76(3) should not be limited to the assessment of points, but rather
should be open to all factors identified in subsection 76(1), including the
settlement funds possessed by the applicant. In this case, there is no evidence
that the visa officer considered those funds in refusing to exercise his
discretion to substitute his evaluation.
[22]
The
visa officer had received a strong letter from the school principal that the
school wants to hire the applicant and is confident that her language skills
will be satisfactory in short order. I note that the principal of the school
has personally met with the applicant to make this assessment. The applicant
has $699,000 to bring to Canada to become established, to which no
reference was made by the visa officer. The Court concludes that the decision
under subsection 76(3) of the Regulations was not reasonable since that
decision gave no weight to the strong letter from the school or to the $699,000
that the applicant would bring to establish herself in Canada. For these
reasons, the visa officer’s decision in this case must be set aside and the
matter remitted to another visa officer for redetermination.
CERTIFIED QUESTION
[23]
The
Court is satisfied that this case does not raise any question that should be
certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This
application for judicial review is allowed;
2.
The
decision of the visa officer dated July 12, 2007 is set aside; and
3.
The
matter is remitted to another visa officer for redetermination.
“Michael
A. Kelen”
Appendix “A”
Immigration and Refugee Protection
Regulations,
S.O.R./2002-227, as amended.
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76. (1) For the purpose of determining whether
a skilled worker, as a member of the federal skilled worker class, will be
able to become economically established in Canada, they must be assessed on
the basis of the following criteria:
(a) the skilled worker must be awarded not
less than the minimum number of required points referred to in subsection (2)
on the basis of the following factors, namely,
(i) education, in accordance with section 78,
(ii) proficiency in the official languages of Canada,
in accordance with section 79,
(iii) experience, in accordance with section 80,
(iv) age, in accordance with section 81,
(v) arranged employment, in accordance with
section 82, and
(vi) adaptability, in accordance with section 83;
and
(b) the skilled worker must
(i) have in the form of transferable and available
funds, unencumbered by debts or other obligations, an amount equal to half
the minimum necessary income applicable in respect of the group of persons
consisting of the skilled worker and their family members, or
(ii) be awarded the number of points referred to
in subsection 82(2) for arranged employment in Canada within the meaning of
subsection 82(1).
(2) The Minister shall fix and make
available to the public the minimum number of points required of a skilled
worker, on the basis of
(a) the number of applications by skilled
workers as members of the federal skilled worker class currently being
processed;
(b) the number of skilled workers projected
to become permanent residents according to the report to Parliament referred
to in section 94 of the Act; and
(c) the potential, taking into account
economic and other relevant factors, for the establishment of skilled workers
in Canada.
(3) Whether or not the skilled worker has
been awarded the minimum number of required points referred to in subsection
(2), an officer may substitute for the criteria set out in paragraph (1)(a)
their evaluation of the likelihood of the ability of the skilled worker to
become economically established in Canada if the number of points awarded is
not a sufficient indicator of whether the skilled worker may become
economically established in Canada.
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76. (1) Les critères ci-après
indiquent que le travailleur qualifié peut réussir son établissement
économique au Canada à titre de membre de la catégorie des travailleurs
qualifiés (fédéral) :
a)
le travailleur qualifié accumule le nombre minimum de points visé au
paragraphe (2), au titre des facteurs suivants :
(i) les études, aux termes de
l’article 78,
(ii) la compétence dans les
langues officielles du Canada, aux termes de l’article 79,
(iii) l’expérience, aux termes de
l’article 80,
(iv) l’âge, aux termes de
l’article 81,
(v) l’exercice d’un emploi
réservé, aux termes de l’article 82,
(vi) la capacité d’adaptation,
aux termes de l’article 83;
b)
le travailleur qualifié :
(i) soit dispose de fonds
transférables — non grevés de dettes ou d’autres obligations financières —
d’un montant égal à la moitié du revenu vital minimum qui lui permettrait de
subvenir à ses propres besoins et à ceux des membres de sa famille,
(ii) soit s’est vu attribuer le
nombre de points prévu au paragraphe 82(2) pour un emploi réservé au Canada
au sens du paragraphe 82(1).
(2) Le ministre établit le
nombre minimum de points que doit obtenir le travailleur qualifié en se
fondant sur les éléments ci-après et en informe le public :
a)
le nombre de demandes, au titre de la catégorie des travailleurs qualifiés
(fédéral), déjà en cours de traitement;
b)
le nombre de travailleurs qualifiés qui devraient devenir résidents
permanents selon le rapport présenté au Parlement conformément à l’article 94
de la Loi;
c)
les perspectives d’établissement des travailleurs qualifiés au Canada, compte
tenu des facteurs économiques et autres facteurs pertinents.
(3) Si le nombre de points
obtenu par un travailleur qualifié — que celui-ci obtienne ou non le nombre
minimum de points visé au paragraphe (2) — ne reflète pas l’aptitude de ce
travailleur qualifié à réussir son établissement économique au Canada,
l’agent peut substituer son appréciation aux critères prévus à l’alinéa (1)a).
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